Legislation would eliminate parental rights for rapists

A Vermont House panel has approved a bill, H.88, that would give rape victims sole and permanent custody of a child conceived in a sexual assault.

The legislation allows a victim to petition the courts for exclusive parenting rights. The victim must show by “clear and convincing evidence” that the child was conceived as a result of sexual assault or sexual exploitation. Victims who report a rape to law enforcement and can show evidence of an assault can petition the courts. A rape conviction is not required.

Nineteen states have passed laws denying parental rights to rapists.

A court case in Vermont helped to spur support in the Legislature for a change in state statutes. In 2005, Robert LeClair, who was convicted of raping a 15-year-old girl in Vermont, sought partial custody of the child that was conceived as a result of the assault. The girl’s family sued, and the case went to the Vermont Supreme Court in 2007. The justices remanded the case to a lower court because they said state statute gives broad standing to any person claiming to be the father of a child, and there was not adequate guidance under the law to prevent rapists from exerting parental rights.

Rep. Michele Fay, D-St. Johnsbury, a sponsor of the bill, said it is difficult for victims of rape to share parenting responsibilities with assailants. Ongoing contact with a perpetrator over a period of 18 years can be painful for victims, typically women, many of whom are trying to extricate themselves from marriages that are marred by domestic violence, she says.

“This bill makes it clear the state has a compelling interest to protect victims of sexual abuse who make the difficult choice to have the child,” Fay told her colleagues in the House Democratic caucus on Tuesday.

Fay, who is the executive director of Umbrella, a domestic violence and sexual assault program, said in 2010 the FBI reported that 51 percent of sexual assaults are between intimate partners and 8 percent of rapes are perpetrated by strangers.

Sexual assaults are “one of the tactics abusive partners use to control their victims,” Fay said. “It’s not uncommon for abusers to cause their partner to get pregnant against their will.”

The legislation recognizes that a perpetrator may use the threat of pursuing parental rights “to coerce a victim into not reporting or assisting in the prosecution of the perpetrator for the sexual assault or sexual exploitation, or to harass, intimidate or manipulate the victim.”

“This bill really is for those victims who are struggling within the context of a marriage or another intimate partner relationship and need to see their way out,” she said.

The “clear and convincing standard” for rape, which would be the basis for the petition, is a “fairly high bar,” Fay said. A conviction automatically meets the standard. If there is no conviction, she said, the court may consider “other evidence.” Victims could demonstrate, for example, that a police report has been filed, there has been some investigation and that the “person you were living with did not get your consent.”

If a divorce is in process when a petition for sole parental rights is filed, the two legal actions would be consolidated, Fay said.

Victims may seek child support.

Anne Galloway

Comments

  1. Barry Kade :

    This is definitely a problem that needs to be addressed by statute. However, I just read the bill as introduced and it is a lot more bare-boned than the article describes.
    The main question I have , which is not addressed is whether there is a time limit by which the mother must make the motion and a report?
    There needs to be a safeguard against a wife deciding at the time of the divorce that the sexual act that resulted in the pregnancy was not consensual. Worst case scenario would be where there is a child that has long recognized the father as a parent; but suddenly that relationship must end because of a convincing argument made by the mother.
    I suggest that the “clear and convincing” requirement be raised to “beyond a reasonable doubt” once the child is born, or some short period thereafter. If a relationship has been established with the child, then it may be harmful to the child to discontinue the relationship. The court should have some discretion in wieighing the factors.
    The problem of a mother having to relate to a rapist for the rest of their lives (in practical terms it would not end at the child’s 18th birthday) is significant. But it should not create a tool whereby an innocent father may be deprived of his rights. With a little tweaking this bill can do it.

    • rosemarie jackowski :

      Barry…I agree with your comment. This is a very difficult problem at a time when any accusation is believed by some.

      The current Woody Allen case comes to mind. Anyone can accuse anyone else of anything… even after an investigation did not come up with evidence.

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